Definition
The departure of a lawfully imprisoned person from custody before being discharged by due process of law. Escape in the legal sense encompasses both the prisoner's act of leaving confinement and, historically, the custodian's act of permitting that departure.
Two distinct legal senses operate within this term:
1. As a criminal offense (the prisoner's perspective): The unauthorized departure from lawful custody. The confinement must be lawful — a person held without legal authority who walks free has not committed escape. The prisoner must depart before the law entitles them to liberty.
2. As a civil wrong or custodial dereliction (the keeper's perspective): The voluntary or negligent allowance of a confined person to leave lawful custody. At common law, a sheriff or jailer who permitted a prisoner to escape could face civil liability to the party at whose suit the prisoner was held, or criminal liability in cases of negligence rising to the level of official misconduct.
Common Language
Modern common usage (Wiktionary): To get free; to free oneself. To avoid any unpleasant person or thing; to elude. To avoid capture or punishment. To pass unnoticed.
Historical common usage (Webster's 1913): To flee from and avoid; to be saved or exempt from; to shun; to obtain security from. To avoid the notice of; to pass unobserved by; to evade.
The common meaning of escape is active and personal — a person fleeing something. The legal meaning splits this into two distinct doctrines: one attaching liability to the person who departs, the other attaching liability to the person who permitted the departure. A researcher encountering "escape" in historical pleadings may find the term directed at the jailer, not the prisoner.
Common Confusion
ESCAPE vs. PRISON BREACH: These terms are frequently conflated in historical sources but are technically distinct. Escape, at common law, was a departure accomplished without force — the prisoner simply walked away, often through a gap in supervision. Prison breach (also called prison breaking) involved the use of force to effect the departure: breaking through walls, overpowering guards, or destroying restraints. Bouvier expressly draws this line: "Escape takes place without force; prison-breach, with." The distinction mattered to the grade of offense and to the civil liability of the keeper. Modern statutes in most jurisdictions have absorbed both concepts into a single escape offense and do not preserve the force-based distinction.
Recognized Forms
/SUBTYPES
Voluntary escape: The keeper intentionally and without legal authority grants the prisoner liberty. At common law, this was considered a more serious dereliction than negligent escape, potentially amounting to a criminal act by the custodian.
Negligent escape: The keeper's failure of supervision allows the prisoner to depart without the keeper's active participation. The keeper was still liable but the offense was treated as less culpable than voluntary escape.
Escape from arrest: Departure from custody following arrest but before full imprisonment. Burrill notes escape from arrest as a recognized category, distinct from escape from an established place of confinement.
Why It Matters in Research
Researchers in historical sources must track which party the pleading or charge is directed at. In early common law actions, an escape action was frequently brought against the sheriff or jailer — not the escaped prisoner — as a civil remedy by the party whose judgment debtor had gotten free. If a creditor's prisoner escaped through the sheriff's negligence, the creditor could sue the sheriff for the debt. This procedural use of escape as a civil cause of action against the custodian disappears almost entirely from modern law, meaning search results in older digests and reporters will surface cases with no modern equivalent.
The requirement of lawful confinement is a persistent research trap. Historical sources consistently emphasize that escape requires the underlying detention to be legally valid. Cases challenging escape charges often turned on the legality of the original arrest or imprisonment, not the act of departure itself. This defense remains live in modern law and connects escape doctrine to Fourth Amendment and due process research.
Jurisdictional variation in modern statutes is significant. Some states have codified escape narrowly (breakout from a correctional facility) while others extend the offense to departure from electronic monitoring, work release, or even failure to return from furlough. A researcher comparing modern statutory text to common law definitions will find the offense has expanded considerably in scope while shedding the custodian-liability dimension almost entirely.
The Rapalje & Lawrence and Anderson entries in this corpus appear to contain misplaced text (covering error and appeal doctrine rather than escape), which is a known indexing artifact. Researchers using those volumes should verify pagination carefully.
Historical Dictionary Support
Black's (both editions) and Bouvier's are in close agreement on the core definition and share the same foundational citation to Bishop's Criminal Law. Both preserve the voluntary/negligent distinction and treat it as structurally important. Burrill adds the most texture, distinguishing "violent" from "privy" evasion — language echoing the prison breach distinction — and grounding the term in the older Latin and Law French forms, which is useful for dating the doctrine's appearance in English legal records.
Bouvier adds a procedural note absent from Black's: the Massachusetts citation (5 Mass. 310) anchoring the definition of escape as "any liberty given to a prisoner not authorized by law" — a formulation broader than mere physical departure, encompassing unauthorized temporary releases and liberties of the yard. This broader framing is relevant for researchers examining pre-Civil War American prison administration.
None of the historical dictionaries address what is now a significant dimension of the modern offense: escape from non-institutional custody such as probation, parole supervision, or electronic monitoring. The historical sources uniformly assume physical confinement in a recognized place of imprisonment.
Jurisdictional Note
Modern American jurisdictions vary substantially in how broadly escape is defined. Federal law under 18 U.S.C. § 751 covers escape from federal custody including non-institutional settings. Many state codes extend the offense to failures to return from authorized absence. The common law distinction between escape (without force) and prison breach (with force) is not preserved in most modern American statutes, though it survives in some form in English law.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Criminal Law — Offenses Against the Administration of Justice; Custodial Liability and the Law of Sheriffs.